International Human Rights Law WEEK 2: LEGAL INSTITUTIONS AND ENFORCING HUMAN RIGHTS

Agenda for Today 1.How to Read a Legal Case 2.Monitoring and Enforcing Human Rights o The United Nations o The Council of Europe and the European Court of Justice o The Human Rights Act and the Idea of a British Bill of Rights 3.Concluding Discussion

How to Read a Legal Case

o Material Facts (& Procedural Background) o Relevant Legal Issues o Summary of Legal Arguments & Application of Law to Facts o Decision (Judgment and Concurring and Dissenting Opinions)

How to Read a Legal Case Read the CJEU press release on Shrems judgment issued on 6 October 2015 o What are the material facts? o What was procedural background? o What was the relevant law that the Court of Justice was required to consider? o What was Maximillian Schrems’ main legal argument? o What was the Data Protection Commissioner of Ireland’s main legal argument? o What was the court’s decision? o How did it reach that decision (application of law to facts)?

Monitoring and Enforcing Human Rights

United Nations Charter of the United Nations 1945 Universal Declaration of Human Rights 1948 (48 countries) ◦not legally binding ◦interpretative aid to the Charter ◦most widely translated document (300+ languages) International Covenant on Civil and Political Rights (ICCPR) (Arts 3-21 UDHR) (168 parties) International Covenant on Economic, Social and Cultural Rights (ICESCR) (Arts 22-7 UDHR) (165 parties)

UN Organisational Structure Security Council ◦Responsible for maintenance of international peace and security ◦Humanitarian intervention (enforcement action) ◦Condemn violations of HR ◦Sanctions (S Africa, Iraq) General Assembly ◦Broad powers to deal with human rights ◦Declarations (not legally binding) ◦Receives and considers reports made by treaty-monitoring bodies through Economic and Social Council ◦Human Rights Council – a state that commits gross and systematic violations of HR can be suspended from membership by 2/3 vote of General Assembly (Libya) International Court of Justice ◦Sits in the Hague. ◦Only adjudicates on disputes between states (Bosnia-Herzegovina v Yugoslavia (Serbia and Montenegro)) ◦Issues advisory opinions on definitions and interpretations of Conventions International Criminal Court ◦Sits in the Hague. ◦Jurisdiction over individuals accused of particularly serious international crimes, e.g., genocide, crimes against humanity, etc.

UN Treaty-Monitoring Bodies Human Rights Committee ◦Monitors implementation of the ICCPR (periodic reporting) ◦Mediates inter-state complaints ◦Investigates individual complaints under Optional Protocol ICCPR (quasi-judicial procedure but not legally binding) Committee on Economic, Social and Cultural Rights ◦Monitors implementation of the IPCESCR (periodic reporting) ◦Gross and systematic violations of HR can be suspended from membership by 2/3 vote of General Assembly (Libya)

UN Treaty-Monitoring Bodies Committee Against Torture Committee on the Elimination of Racial Discrimination Committee on the Elimination of Discrimination Against Women Committee on the Rights of the Child Migrant Workers Committee Committee on the Rights of Persons with Disabilities Committee on Enforced Disappearances

Council of Europe & the ECHR Founded in 1949 – 10 member states European Convention on Human Rights 1950 …as the governments of European Countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law to take the first steps for the collective enforcement of the rights stated in the Universal Declaration…

ECHR and the Margin of Appreciation Handyside v United Kingdom (1976) It is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them. BUT, The ‘domestic margin of appreciation…goes hand in hand with a European supervision (para 49).’

European Court of Human Rights (ECtHR) Founded in Sits in Strasbourg. Receives complaints from individuals and States alleging violations of rights protected under ECHR Gives advisory opinions on legal questions arising from interpretation ECHR Inter-State Complaints ◦Ireland v UK [1978] – interrogation methods employed by UK on IRA suspects amounted to torture, inhuman and degrading treatment in breach of Article 3) Individual Complaints ◦

European Union Originally 3 European Communities: Treaty of Paris 1951  European Coal and Steel Community Treaties of Rome (TFEU) 1957  European Economic Community + European Atomic Energy Community Maastricht Treaty 1993  European Union All 28 member states of the European Union are also members of the Council of Europe and bound by the terms of the ECHR

Charter of Fundamental Rights Charter of Fundamental Rights of the European Union (2000) ◦Incorporated into the Treaty of Lisbon 2007 ◦Affirms universality, indivisibility, democracy & rule of law ◦Codifies existing rights enjoyed by European citizens ◦Rights to be recognised and applied by the institutions of the Community and by the Member States when implementing Community law (Art 51) Fundamental Rights Agency established 2007 to collect information on fundamental rights and offer expert advice to EU member states and institutions Proposal for EU to accede to ECHR stalled by ECJ ruling December 2014 – would not be in accordance with EU law

European Court of Justice Established Sits in Luxembourg. Jurisdiction of the court: ◦Requests for a preliminary ruling (Article 267 TFEU) ◦Actions for failure to fulfill an obligation – brought against EU govts for not applying EU law ◦Actions for Annulment – against EU laws thought to violate EU treaties or fundamental rights ◦Actions for failure to Act – against EU institutions for failing to make decision required of them ◦Direct Actions – brought by individuals, companies or organisations against EU decisions or actions

In Summary… United Nations International Bill of Human Rights International Court of Justice (Hague) Council of Europe European Convention of Human Rights European Court of Human Rights (Strasbourg) European Union Charter of Fundamental Rights + Lisbon Treaty European Court of Justice (Luxembourg)

Human Rights Act 1998 Incorporated key provisions of the ECHR into UK domestic law: ◦UK law must be interpreted by the courts, as far as possible, in a way compatible with HRA rights ◦If an Act of Parliament breaches these rights, courts can declare legislation incompatible (but the law remains valid until Parliament acts) ◦It is unlawful for any public authority to act incompatibly with HRA rights ◦Any Minister proposing a Bill must state the Bill is either compatible with human rights or that it is incompatible but that the Government nevertheless wishes to proceed with the Bill BUT consider the doctrine of parliamentary supremacy – parliament is the supreme legal authority, courts cannot overrule the will of parliament, no parliament can bind its successors

In Summary… United Nations International Bill of Human Rights International Court of Justice (Hague) Council of Europe European Convention of Human Rights European Court of Human Rights (Strasbourg) European Union Charter of Fundamental Rights + Lisbon Treaty European Court of Justice (Luxembourg) UK Human Rights Act UK Domestic Courts

Agenda for Today 1.How to Read a Legal Case 2.Monitoring and Enforcing Human Rights o The United Nations o The Council of Europe and the European Court of Justice o The Human Rights Act and the Idea of a British Bill of Rights 3.Concluding Discussion

Next Week 1.Introduction to Equality and Non-Discrimination 2.Review of Case Studies: Article 14 ECHR 3.Concluding Discussion

Thank you! ANY QUESTIONS?